By Stephanie Goutos, Albany Government Law Review
On October 11, 2009, an intoxicated Carmen Huertas got into her vehicle and began to drive seven young children to a slumber party. Manhattan District Attorney Robert Morgenthau would later report that Ms. Huertas had “brushed off warnings that she was too drunk to drive,”  and authorities stated she was playing a guessing game with the passengers, asking them to raise their hands if they thought they would make it home without crashing. Ms. Huertas subsequently lost control of the vehicle, which swerved off the road and flipped over on the Henry Hudson Parkway. Huertas’s blood alcohol limit was tested at the scene of the accident and reported to be above 0.13 percent, surpassing the legal limit of 0.08. One of the passengers in the car was eleven year old Leandra Rosado, who was thrown from the vehicle as a result of the accident, and did not survive. Continue reading
Alicia M. Dodge, Albany Government Law Review Member
On March 16, 2010, the former New York State Governor Paterson signed into law New York’s Family Health Care Decisions Act (FHCDA), effective June 1, 2010. Through the enactment of the FHCDA, New York became the forty-ninth state to pass a “surrogate decision-making statute.” The FHCDA sets forth a list of persons who are deemed authorized to make health care decisions, including the decision to terminate life support for a patient without a health care proxy, who now lacks the capacity to make health care decisions. Prior to the enactment of the FHCDA, New York State law regarding end-of-life decision-making was well-established, and had been relatively uniform for the past twenty-five years. With the passage of the FHCDA, the precedent was greatly changed.
Amanda Cluff, Senior Editor, Albany Government Law Review Member
One of the most prevalent concerns in both elder and healthcare law is the abuse of rights bestowed upon a durable power of attorney. Numerous stories circulate daily regarding elderly persons who have been financially manipulated by individuals designated to this important role. A power of attorney is defined as “a legal document through which a principal authorizes an agent [also known as an attorney in fact] to act on the principal’s behalf.” This power usually terminates once the principal—the person who authorizes the power to an agent—becomes mentally incapacitated, or otherwise unable to exert decision-making abilities.
However, when a durable power of attorney is created, the power of attorney continues to remain effective, even after such incapacity occurs. This sort of power can be beneficial in several respects. First, the durable power of attorney can replace an unfamiliar court-appointed guardian or conservator. In addition, those who are given a durable power of attorney are able to make both personal and property decisions in the best interests of the principal, who lacks capacity to do so. However, the danger of a durable power of attorney is also what makes it beneficial—the durable power of attorney is given virtually unconstrained and very broad authority to handle the principal’s financial affairs. Consequently, this is a power that is difficult to monitor and, therefore, may be subject to various forms of abusive or fraudulent behavior by the agent.